What’s in a Name: Supreme Court Upholds Constitutionality of Federal Trademark Statute Against Free-Speech Claims in Vidal v. Elster

Thursday, July 11th, 2024

In recent years, the Supreme Court has taken a keen interest in harmonizing intellectual property and the free speech protections of the First Amendment.[1] In 2023, the Court held that artist Andy Warhol’s unauthorized use of a photograph of Prince to create a silk screen portrait of the artist was not a protected fair use under the Copyright Act.[2] In the copyright context, fair use carves out a line of demarcation between an author’s right to monopolize his creative expressions and free speech by allowing others to engage in non-infringing uses like critiques, commentary, new reporting, teaching, and research.[3] Fair use also exists in trademark law, albeit in a narrower context. Trademark law protects words, phrases, symbols, and even smells that are used in commerce to distinguish one source of goods from others in relevant markets. Shortly after its Warhol decision, the Court ruled that VIP Products’ dog toy, fashioned as a parody of the Jack Daniel’s brand, was not a fair use of Jack Daniel’s’ trademarks because the parody still functioned to identify VIP Products as the source of the toy – meaning the parody was used as a trademark.[4] In 2017 and 2019, the Supreme Court held that certain clauses in the Lanham Act, which denied trademark protection to disparaging, scandalous, or immoral marks, violated the First Amendment’s prohibitions against viewpoint discrimination.[5] On June 13, 2024, the Supreme Court addressed a new free speech challenge to intellectual property law: whether Section 2(c), of the Lanham Act, often called the names clause, amounts to viewpoint discrimination under the First Amendment. The Court’s answer? A resounding no.

In 2018, Steve Elster filed an application to register the phrase “TRUMP TOO SMALL” (the “Mark”) as trademark with the United States Patent & Trademark Office.[6] The phrase draws on an “exchange between [former U.S. President] Donald Trump and Senator Marco Rubio during a 2016 Presidential primary debate.”[7] Both the trademark examiner and Trademark Trial and Appeal Board refused to register the mark on the grounds that it violated Section 2(c) of the Lanham Act, which prohibits the registration of a real person’s name as a trademark without that person’s written consent.[8] Elster appealed, claiming that Section 2(c) verges on viewpoint discrimination because “it is easier to obtain consent for a trademark that flatters a person rather than mocks him.”[9] The Supreme Court, for various reasons, unanimously disagreed.

In the principal opinion, Justice Thomas, explained that Section 2(c) is viewpoint-neutral but not content neutral, a point that distinguishes this case from the Court’s earlier decisions in Matal v. Tam and Iancu v. Brunetti– where the Court struck down clauses in Section 2(a) as unconstitutional viewpoint discrimination. Thomas addressed the statute’s viewpoint neutrality, noting that Section 2(c) “is thus not singling out a trademark ‘based on the specific motivating ideology or the opinion or perspective of the speaker.’”[10] The constitutionality of viewpoint-neutral, content-based trademark registrations proved to be an issue of first impression for the Court. Refusal of a trademark registration under Section 2(c) turns distinctly on whether the proposed mark contains a person’s name. Such a restriction is content-based because “the law applies to particular speech because of the topic discussed or the idea or message expressed.”[11] It was in evaluating viewpoint neutral but content-based speech restrictions that the Justices diverged. Justice Thomas relied heavily on Section 2(c)’s “deep roots in our legal tradition,” using historical precedent to explain that people have long been entitled to use their own names in commerce.[12] The other justices were less wed to the historical justification. Justice Barrett, mostly joined by Kagan, Jackson, and Sotomayor, questioned “why hunting for historical forebears on a restriction-by-restriction basis” is the optimal solution.[13] Justice Sotomayor, joined by Jackson and Kagan, criticized the majority’s “hunting far into a dimmy past” and suggested that, when the restriction is viewpoint-neutral, it need only reasonably fit the purposes of trademark law to be constitutional.[14] Regardless of each justice’s approach, the Court ultimately decided that refusing to allow trademark registrations for personal names by third parties without consent it is a constitutionally protected restriction on speech.

Beyond the Court’s various constitutional analyses, there are attractive economic reasons for maintaining Section 2(c)’s place within trademark law’s architecture. Trademark protection serves two vital, intertwined functions: (1) protecting consumers by reducing search costs and deterring counterfeits and (2) preventing freeriding and unfair competition by competitors. Section 2(c) furthers both objectives. Allowing the unfettered, unauthorized use of a personal name as a trademark by someone other than the named individual would significantly increase the risk that consumers draw a false affiliation between the mark holder and person named. Further, such a policy would allow third parties to use the names of competitors with strong reputations in the market to freeride on the name’s goodwill, discouraging investment in the kind of quality advertising that reduces consumer search costs in the first place. Despite the nature of the mark in contention, this case falls far outside the norm of the political sphere. Instead, the ruling here contributes some clarity to the often-abstruse bounds of intellectual property. Though a day may come when history alone cannot answer free speech-related trademark questions, the Court’s ruling in Vidal v. Elster implicitly heartens the economic justifications that form the bedrock of trademark law.

[1] See Matal v. Tam, 582 U.S. 218 (2017) (holding that the USPTO could not deny trademark protection on the grounds that a mark was disparaging); Iancu v. Brunetti, 588 U.S. 388 (2019) (holding that the USPTO could not deny trademark protection on the grounds that a mark was immoral or scandalous); Google, Inc. v. Oracle Am., Inc., 593 U.S. 1 (2021) (holding that Oracle’s use of Google’s declaring code to create a transformative, new platform was a fair use of Google’s copyright); Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith, 598 U.S. 508, 550–51 (2023) (holding that Andy Warhol’s use of a copyrighted photo to create a silk-screen portrait was not a fair use due to the commercial nature of the use); Jack Daniel’s Props. v. VIP Prods. LLC, 599 U.S. 140 (2023) (holding that VIP Products’ “Bad Spaniels, Old No. 2, Tennessee Carpet” parody dog toy was not a fair use of Jack Daniel’s trademarks and trade dress); Vidal v. Elster, 2024 U.S. LEXIS 2605 (2024) (holding that Elster was not entitled to trademark protection for the “Trump Too Small” mark without Donald Trump’s consent).
[2] See Goldsmith, 598 U.S., at 550–51.
[3] See 17 U.S.C. §107; Harper & Rowe, Publrs. v. Nation Enters., 471 U.S. 539, 560 (1985); Eldred v. Ashcroft, 537 U.S. 186, 197 (2003).
[4] See Jack Daniel’s Props., 599 U.S. 140.
[5] See Tam, 582 U.S. 218; Brunetti, 588 U.S. 388.
[6] See In re Elster, 2020 TTAB LEXIS 373 (T.T.A.B. 2020).
[7] Vidal v. Elster, 2024 U.S. LEXIS 2605, at 10.
[8] In Re Elster, 2020 TTAB LEXIS 373; 15 U.S.C. § 1052(c).
[9] Vidal v. Elster, 2024 U.S. LEXIS 2605, at 13.
[10] Id.
[11] Id. at 14 (quoting Reed v. Town of Gilbert, 576 U.S. 155, 163 (2015)).
[12] Id. at 23–24.
[13] Id. at 37 (Barret J., concurring).
[14] Id. at 60–61 (Sotomayor J., concurring) (quotations omitted).

Virginia Auto Insurance Changes: Why Almost Every Car Accident Case Will Soon Involve at Least $100,000 in Insurance Coverage

Monday, July 1st, 2024

Article co-written by Matthew Broughton, Jared Tuck, and Summer Associate Emily Brooks

Virginia law has seen several recent changes regarding auto insurance, and this trend is continuing. Since July 1, 2023, three major changes have been enacted, with two taking effect in the near future. Here’s what you should know about these recent changes to the law and what impact these changes will have on personal injury cases arising from Virginia motor vehicle accidents. 

I.  Change #1: Elimination of the Liability Credit

Underinsured motorist coverage (UIM) and uninsured motorist coverage (UM) both act as a safety mechanism if you or your family are involved in a motor vehicle collision with an individual who either: (1) does not have enough insurance to cover the costs of your damages, or (2) does not have any insurance. In these situations, the amount of underinsured and uninsured motorist coverage you have will significantly impact the amount of money you can recover for your injuries.

As of July 1, 2023, the amount of damages an individual may recover from his/her own UIM is no longer reduced by the underinsured motorist’s liability coverage amount. Instead, the injured motorist can now obtain and benefit from the full amount of his/her underinsured motorist policy.[1] For example, let’s say Robert has $100,000 in underinsured motorist coverage, and he is injured by a motorist who has $50,000 in liability insurance coverage. Let’s assume that Robert’s total damages from the accident amount to $150,000. Before July 1, 2023, Robert was only able to collect $50,000 from his UIM, despite having a $100,000 policy. This is because the $50,000 liability insurance coverage of the motorist who caused the accident would be deducted from the total amount of underinsured motorist damages Robert could receive from his policy. After the July 1, 2023 change, Robert can collect the entire $100,000 from his UIM, receiving the full benefit of his policy. In other words, you are now able to enjoy the full benefits of your underinsured motorist policy.

The July 1, 2023 change allows a motorist to elect in writing to reduce his/her UIM coverage by the liability limits.[2] DO NOT LET AN INSURANCE AGENT TALK YOU INTO ELECTING TO REDUCE YOUR UIM LIMITS!

II.  Change #2: Mandatory Auto Insurance

Effective July 1, 2024, a second major change to auto liability insurance under Virginia law has finally become a reality. This change requires every person applying for registration of a motor vehicle to have insurance on his/her vehicle.[3] Any owner who refuses or neglects to submit proof of automobile liability insurance coverage within 30 days of request by the Commissioner or duly authorized agent, will have his/her driver’s license, registration certificates, and license plates suspended until the owner of the motor vehicle has both: (1) furnished proof of the required liability insurance coverage, and (2) paid a $600 noncompliance fee.[4]

This requirement is a substantial change from the previous options available for motorists. Historically, motorists could register an uninsured motor vehicle by paying an annual $500 fee to the Department of Motor Vehicles in lieu of maintaining automobile liability insurance on the vehicle. As of July 1, 2024, this is no longer an option, and all motorists will be required to obtain the minimum levels of bodily injury liability insurance required under Virginia Code § 46.2-472.[5] Currently, this amount sits at $30,000 per bodily injury or death to one person in any one accident, and $60,000 for bodily injury or death to two or more persons in any one accident.[6] However, this amount will be increasing on January 1, 2025. 

III. Change #3: Increase in Minimum Limits

Beginning on January 1, 2025, Virginia law will require all auto policies effective on or after that date to have a minimum liability limit of $50,000 per bodily injury or death to one person in any one accident and a minimum limit of $100,000 in UIM for bodily injury or death to two or more persons in any one accident.[7] This change will also increase the amount of uninsured and underinsured motorist coverage because Virginia law requires the UM/UIM limits to be at least equal to the minimum liability limit.[8] In other words, the minimum UM/UIM limit will also increase to $50,000 per person and $100,000 per accident.

IV.  How These Changes Impact Virginia Personal Injury Cases

Ultimately, the new changes in Virginia auto insurance law will significantly increase the amount potentially recoverable for a plaintiff injured in a motor vehicle accident where there is limited insurance coverage.

Before the July 1, 2024 change mandating auto insurance, the worst-case scenario for a plaintiff injured in a crash was that both motorists were uninsured and had elected to pay the $500 uninsured motorist fee. In this scenario, there would not be any insurance coverage for the plaintiff to collect, and the plaintiff would be limited to pursuing the defendant’s personal assets.

With the July 1, 2023 change eliminating the liability credit, the July 1, 2024 change mandating auto insurance, and the January 1, 2025 change increasing the minimum limits to $50,000, almost every Virginia personal injury case arising out of a motor vehicle collision will involve at least $100,000 in insurance coverage.

This is because the defendant will be required to have $50,000 in liability coverage pursuant to Virginia Code § 46.2-472(B)(3), and the plaintiff will be required to have $50,000 in UIM pursuant to Virginia Code § 38.2-2202(B).[9] Given the elimination of the liability credit, a plaintiff with $100,000 in damages will be able to recover $50,000 from the defendant’s insurer and $50,000 from his/her UIM carrier. It should be noted that this example assumes that the plaintiff has not elected to reduce his/her UIM coverage by the liability limits.[10] In our experience, elections to reduce are uncommon because the default rule is that the July 1, 2023 change applies, and any election to reduce must be in writing.[11] However, if the plaintiff elected to reduce, then the worst case scenario would still be $50,000 in coverage, unless both the plaintiff and defendant failed to purchase auto insurance, which would be illegal under the July 1, 2024 change.

The amount of auto insurance applicable to a personal injury case can be a complicated issue that varies on a case-by-case basis. If you have been injured in a motor vehicle collision where the at-fault driver has no insurance coverage or limited insurance coverage, contact one of our personal injury attorneys who can evaluate all of the facts and circumstances of your case, determine the total amount of potentially applicable insurance coverage, and advise you of your legal remedies to obtain the most amount of compensation possible.

[1] Va. Code § 38.2-2206(B) (effective July 1, 2023).
[2] See Va. Code § 38.2-2202(C).
[3] Va. Code § 46.2-706 (effective July 1, 2024).
[4] Va. Code § 46.2-706(B) (effective July 1, 2024).
[5] Va. Code § 46.2-472.
[6] Va. Code § 46.2-472(A)(3).
[7] See Va. Code § 46.2-472(B)(3).
[8] Va. Code § 38.2-2202(B).
[9] See Va. Code § 46.2-472(B)(3); Va. Code § 38.2-2202(B) (requiring UM/UM limits to be “no lower than the financial responsibility limits required by § 46.2-472”).
[10] See Va. Code § 38.2-2202(C).
[11] See id.

We All Make Mistakes

Tuesday, June 18th, 2024

We all make mistakes. Mistakes happen at home; they happen driving to work, mistakes are made here in the law firm, and mistakes happen in the practice of medicine. A victim seeking compensation arising from a medical mistake, “medical malpractice,” faces legal challenges to recovery in Virginia which are unique among tort victims. This is why having an experienced Virginia medical malpractice attorney can make or break a case.

For instance, unlike all other personal injury claims, medical malpractice cases have a cap, or limit, on recovery imposed by Virginia law which applies regardless of the severity of the injury or amount of damages suffered.[1] Also, a medical malpractice case cannot begin until an appropriate expert provides a signed certification confirming that the harm arose from a breach of the applicable standard of care. [2] Not just any “expert” will do. Virginia requires that the certifying expert have the same or similar clinical experience as the potential defendant “within one year” of the mistake at issue, and that the expert be familiar with the standard of care in Virginia. Finding the medical expert who satisfies these criteria, and who is willing to criticize another professional colleague, is sometimes impossible; and always costs money.

Additionally, obtaining the relevant medical records and identifying the potential providers – and their employers – who may be responsible for mistakes can be daunting. The advent of electronic medical records has reduced human-input to “charting by exception.” Translated, this means: 90% of the medical record is complete with presumptive normals (and charting designed to facilitate reimbursement) before the patient ever presents. The providers presumably then override the auto-populated format to document complaints and symptoms relevant to diagnose, treat and communicate the patient’s present symptoms.

Questions to Consider

These are just a few of the many challenges imposed to create financial disincentives to pursing malpractice cases in Virginia. The legislative deck is stacked decidedly in favor of healthcare providers from start to finish. To be prepared for, and to overcome, these hurdles, early evaluation and action must be taken to identify issues and claims, and to preserve evidence which may be destroyed or lost in the ordinary course. Following is a list of questions and issues to consider at the outset of each potential malpractice case:

1. Is there information outside of the medical record such as video, voice messaging or text messaging relevant to the claim?
2. Are there laboratory slides, biologic samples, toxicology or orthopedic appliances or devices which need to be preserved?
3. Are there parties or witnesses whose testimony should be preserved?
4. In cases of wrongful death, was an autopsy performed?
5. Is an autopsy necessary?
6. Who should perform the autopsy and where?
7. Who should be invited to attend the autopsy?
8. When does the statute of limitations expire?
9. Limitations periods vary for minors;
10. Limitations periods may extend for retained foreign bodies;
11. Limitations periods may extend for failure to diagnose cancer;
12. Virginia Tort Claims Notice may be required within one year for providers employed by the State;
13. Apologies and “expressions of sympathy” by healthcare provides are inadmissible as evidence of liability by statute![3]
14. Evidence of the standard of care required may be offered only through the testimony of expert witnesses;
15. Does the potential defendant have a reported claims history?
16. Does the potential defendant’s insurance policy have a “consent to settle” provision?
17. Is there a “better” choice of potential venues to file the claim?
18. Do the injuries and damages justify the expense associated with pursuing the claim?
19. Do the medical records corroborate the plaintiff’s understanding of the treatment provided?

Conclusion

Of course this is not an exhaustive itemization of issues, but the statutory framework governing medical malpractice cases demands early understanding and evaluation of the obstacles to recovery. Without exception, the cases are defended vigorously, and they are expensive to prosecute. Hospital systems and insurance underwriters have little fear of defending cases in Virginia where the malpractice cap has effectively eliminated their duty to protect the healthcare providers from multimillion dollar verdicts. The job of an underwriter has already been performed by the Virginia legislature. As illogical as it may sound, the cap on recovery actually serves as a disincentive to the insurance carrier’s obligation to resolve the most egregious cases, because, the carrier’s attitude becomes: “well, the most we can lose is the cap, and regardless of the merits of the case, there is always a chance we might win.”[4]

Each client and each case is unique. Despite the considerations outlined here, we take pride specializing in medical malpractice cases and our ability to understand the consequences suffered by our clients, developing their stories, and leveling the playing field when litigating these cases. Over decades of trying hundreds of malpractice cases, Gentry Locke has developed the staff, the experience and the reputation necessary to bring justice to our clients whose lives have been upended by medical mistakes.  Our medical malpractice attorneys are supported by staff including registered nurses familiar with not only the medical issues, but also the litigation tactics and defenses asserted in response to thousands of claims over the years. Each member of our team works together with our clients and our referring counsel toward a resolution which provides accountability for the mistake. Contact us for all your medical malpractice needs or concerns.

[1] Va. Code § 8.01-581.15.
[2] The “standard of care” is defined as “the degree of skill and diligence practiced by a reasonably prudent practitioner..”  Va. Code § 8.01-581.20(A)
[3] Va. Code § 8.01-581.20:1
[4] This attitude actually extends another step in cases a carrier expects to lose: “we will appeal and delay any recovery to the plaintiff.”

The Supreme Court of Virginia Addresses Commonwealth’s Use of the Defense of Sovereign Immunity When a Contract is at the Center of the Dispute

Wednesday, June 12th, 2024

Article co-written by Andrew Gay, Jeff Southard, and Summer Associate Carter Leverette

In early May, the Supreme Court of Virginia’s decision in Montalla, LLC v. Commonwealth, established some favorable legal precedent for contractors doing business with the Commonwealth of Virginia.[1] Specifically, the Court noted that the Doctrine of Sovereign Immunity cannot be used as a defense by the Commonwealth when a party brings a claim against it based upon a valid contract entered into by a duly authorized government agent.[2] Traditionally, the doctrine of sovereign immunity prevents parties from being able to sue federal or state governments when they are acting within the scope of their governmental authority unless the government consents to being sued. The Court’s finding in Montalla is critical as it clarifies that actions based upon a valid contract renders sovereign immunity inapplicable, making the government liable to suit even without their consent. Additionally, remedies usually barred by sovereign immunity are now available to parties bringing contract claims against the Commonwealth. In this case, the Court held that the plaintiff could seek an equitable remedy against the government (e.g., to seek equitable recission of a settlement agreement)[3] and a statutorily provided remedy even though the statute itself did not expressly waive sovereign immunity.[4]

Montalla, LLC acquired the rights to service contracts that a previous company (NXL) had entered into with the Virginia Department of Transportation (VDOT). During NXL’s dealing with VDOT, VDOT refused to reimburse NXL for overhead costs that the service contracts had initially obligated VDOT to reimburse due to conflicting interpretations of the Federal Acquisition Regulations (FAR). VDOT’s position was that VDOT did not have to reimburse NXL for overhead costs that were not eligible for federal reimbursement. NXL’s position was that although certain overhead costs may not have been eligible for federal reimbursement, the FAR did not forbid VDOT from still reimbursing NXL under the service contracts. Ultimately, NXL began to lose money on the service contracts and was forced into a position where NXL agreed to settle with VDOT for reimbursements far below the original agreed-upon percentage.

During the settlement negotiations, VDOT sought guidance from the Federal Highway Administration (FHWA) on how the FAR provisions in question should be interpreted. The FHWA sided with NXL’s interpretation of the FAR provisions. VDOT planned to adopt the FHWA and NXL’s position as VDOT’s official policy moving forward but intentionally chose to hold off on doing so until it entered a favorable VDOT settlement with NXL. However, VDOT was not forthcoming about this development with NXL and used NXL’s deteriorating financial situation to its advantage. Once NXL caught wind of the FHWA interpretation and VDOT’s policy maneuvering VDOT was unwilling to revisit settlement discussions.

Montalla filed a five count lawsuit against the Commonwealth of Virginia, VDOT, and the Comptroller of Virginia. Montalla sought to rescind the settlement agreement on two claims due to VDOT’s use of its self-induced economic leverage and less than candid dealings with NXL during the settlement negotiations. These first two counts became the focus of the litigation, and the Supreme Court of Virginia’s decision. The first count sought a declaratory judgment that the settlement agreement entered into by NXL was void due to economic duress. Montalla’s second count sought to vacate the settlement agreement pursuant to a Virginia statute, which provided that a court shall vacate any agreement “reached in a mediation … where … [t]he agreement was procured by fraud or duress, or is unconscionable[.]”[5] The third, fourth, and fifth counts were claims that VDOT breached its duty of good faith and fair dealing, material breach of the service contracts, and that VDOT’s actions constituted a regulatory taking without just compensation in violation of Article I, Section 11 of the Constitution of Virginia.

At the trial, the circuit court dismissed the entire complaint, with prejudice, on the grounds that sovereign immunity barred all five counts. Montalla appealed the trial court’s ruling to the Court of Appeals, but its luck didn’t change. The Court of Appeals affirmed the circuit court’s ruling, “concluding that Counts I-III of the complaint were barred by sovereign immunity and that Counts IV-V were barred by the entry of a settlement agreement entered into by the pertinent parties.”[6]

Montalla then appealed its claims to the Supreme Court of Virginia, which stated that the lower courts were correct in that the doctrine of sovereign immunity “is alive and well in Virginia.”[7] However, the court of appeals erred on the basis that “Virginia has ‘never extended th[e] defense [of sovereign immunity] to actions based upon valid contracts entered into by duly authorized agents of the government.’”[8] The Court then reasoned that “ the sole remaining question regarding the Commonwealth’s claim of sovereign immunity is whether Montalla’s claims are ‘based upon valid contracts[.]’”[9] Further reasoning that “it is the nature of the dispute and not the remedy sought that determines whether an action is based upon [a] contract.”[10] If the court must focus on a “duty or obligation” that the plaintiff claims has been breached, then “the nature of the dispute” is based upon a contract.[11]

Diving deeper, the Supreme Court held that the court of appeals erred in applying sovereign immunity to count one (equitable rescission of the settlement agreement) because it did not limit “its focus to the source of the duty allegedly breached, but rather, focused on the nature of the remedy sought.”[12] The Court discussed that while equitable remedies are usually unavailable against the Commonwealth, “equitable contract remedies” must be available against the Commonwealth to prevent it from avoiding “obligations it undertook in validly entered contracts.”[13] As to count two (recission of the settlement agreement pursuant to Va. Code § 8.01-581.26), the Supreme Court once again held that the court of appeals erred in applying sovereign immunity because it “[f]ocused on the remedy sought as opposed to the basis of the action itself[.]” The Court agreed with the appellate court’s reasoning that indeed, “a general statute that does not contain an express waiver of sovereign immunity does not waive the Commonwealth’s immunity.”[14] However, the Supreme Court reasoned that this principle is only applicable if sovereign immunity applies in the first place, which, in a contract dispute, it is not. The Court finally held that the viability of counts three, four, and five would now depend upon the success of counts one and two on remand, which were no longer barred by sovereign immunity.

In conclusion, contractors dealing with the Commonwealth should be aware that when they enter into valid contracts with the Commonwealth, they can hold it accountable for those contracts and seek lawful remedies that may otherwise be unavailable due to sovereign immunity.

[1] Montalla, LLC v. Commonwealth, No. 230364, 2024 Va. LEXIS 28 (2024).
[2] Id. at 15.
[3] Id. at 19.
[4] Id. at 21­­­­­­–22.
[5] Id. at 21 (quoting VA. Code § 8.01-581.26).
[6] Id. at 1.
[7] Id. at 13 (quoting Fines v. Rappahannock Area Cmty. Servs. Bd., 301 Va. 305, 313 (2022)).
[8] Id. at 15 (quoting Wiecking v. Allied Medical Supply Corp., 239 Va. 548, 551 (1990)) (alterations in original). Still, the Court noted that “[t]his is not to say that a party seeking to raise a contractual claim against the Commonwealth or one of its agencies simply may file suit in a circuit court as it would against any other litigant,” a party must follow the procedures established in Va. Code § 8.01-192. Id.
[9] Id. at 17.
[10] Id. at 18.
[11] Id.
[12] Id.
[13] Id. at 19.
[14] Id. at 21–22.

You’ve Been in a Tractor-Trailer Collision. Who is at Fault?

Friday, May 31st, 2024

Tractor-trailer crashes differ from motor vehicle collisions because there are many companies and individuals involved in the transportation and logistics industry, meaning various people or entities may be at fault for causing a catastrophic or fatal truck accident. As Virginia truck accident attorneys, we have noticed that that there are a wide variety of potential defendants in truck crash cases, including, but not limited to: (1) truck drivers, (2) motor carriers, (3) intermodal equipment providers, (4) shippers, (5) brokers, and (6) manufacturers.

Generally, federal and Virginia law only require motor carriers to carry $750,000 in liability insurance, except greater limits are required for motor carriers hauling certain kinds of freight, such as hazardous materials.^[1] When a tractor-trailer is involved in an accident, catastrophic injuries and death often result. Each year in the United States, approximately 5,000 to 6,000 people die in truck crashes, and approximately 155,000 people are injured in truck crashes.^[2] For this reason, $750,000 is commonly insufficient to fully compensate the victim of a truck crash. Therefore, a thorough investigation of your tractor-trailer collision is imperative because failing to identify all potential defendants may significantly limit your recovery in a Virginia personal injury or wrongful death case.

1. Truck Drivers

Truck drivers are regularly at fault for causing tractor-trailer collisions. Most often, truck drivers are responsible because of some sort of negligent operation of the commercial motor vehicle, such as making an improper lane change, failing to maintain proper control, failing to keep a proper lookout, failing to yield the right of way, traveling too fast under the circumstances, etc. However, truck drivers can also be responsible for other types of negligence, like failing to inspect and maintain the tractor-trailer. Federal law requires truck drivers operating in interstate commerce to complete daily driver inspection reports and “[b]e satisfied that the motor vehicle is in safe operating condition” prior to operating any commercial motor vehicle.^[3]

Although the truck driver’s negligence may be the primary cause of a truck accident, other companies or individuals may also bear responsibility. A plaintiff who only sues the truck driver will likely face a limited recovery, especially if there is insufficient or inapplicable insurance coverage and the truck driver does not have any significant personal assets. Thus, it is rare for the truck driver to be the only defendant in a truck accident case.

2. Motor Carriers

A motor carrier is the “person providing motor vehicle transportation for compensation,” which is usually a trucking company.^[4] There are two types of claims that can be alleged against motor carriers in truck crash cases: (1) direct liability claims, and (2) vicarious liability claims. Direct liability claims are those attributable to the motor carrier’s misconduct. For example, a motor carrier may negligently hire or retain a truck driver who has repeated traffic convictions for causing crashes due to his or her reckless driving. On the other hand, vicarious liability claims are those attributable to an employee or agent’s misconduct. For example, a plaintiff can sue a motor carrier for its truck driver’s negligence that occurred in the course and scope of the truck driver’s employment or agency relationship with the motor carrier.

The Federal Motor Carrier Safety Regulations (“FMCSRs”) prescribe many rules and obligations for motor carriers operating in interstate commerce.^[5] If the motor carrier violates the FMCSRs and such violation causes a tractor-trailer crash resulting in personal injuries or death, then the motor carrier may be held liable for negligence per se under Virginia law.^[6] Therefore, it is important to retain a truck accident attorney that is intimately familiar with the FMCSRs.

3. Intermodal Equipment Providers

In the trucking industry, trucking companies often agree to share their equipment through interchange agreements. Intermodal equipment is “trailing equipment that is used in the intermodal transportation of containers over public highways in interstate commerce, including trailers and chassis.”^[7] An intermodal equipment provider is “any person that interchanges equipment with a motor carrier pursuant to a written interchange agreement or has contractual responsibility for the maintenance of the intermodal equipment.”^[8]

The FMCSRs require intermodal equipment providers operating in interstate commerce to “systematically inspect, repair, and maintain” their equipment and keep parts and accessories “in a safe and proper operating condition at all times.”^[9] If an intermodal equipment provider fails to properly maintain its equipment, provides such defective equipment to a trucking company, and the defective equipment causes a crash, then the intermodal equipment provider may be liable for negligently entrusting its equipment to the trucking company. For example, an intermodal equipment provider supplying a trailer with improperly maintained brakes may be liable for negligently entrusting the trailer to another.^[10]

4. Shippers

In some instances, shippers are responsible for truck crashes. The typical situation is where the shipper negligently loads or secures the trailer’s freight. If the freight is improperly loaded or secured, then the load may shift or even fall off, which can lead to a catastrophic truck collision.

5. Brokers

In the trucking industry, shippers regularly hire freight brokers, who act as middle men and are involved in the business of selecting motor carriers to transport the freight. Some courts have recognized that a broker may be liable under Virginia law for negligently hiring an incompetent motor carrier.^[11] This is because readily available information, like statistics published on the United States Department of Transportation’s website, may show that it was well known that the selected motor carrier frequently committed safety violations or hired incompetent drivers. A broker may also be liable if it exercised so much control over the negligent truck driver that it formed a principal-agent relationship. There is currently a disagreement among federal circuit courts about whether certain broker claims are preempted (barred) by the Federal Aviation Administration Authorization Act (F4A).^[12]

6. Manufacturers

Truck and trailer manufacturers may also be responsible for a trucking collision if a part on the truck or trailer was defective and such defect caused the collision. For example, the truck or trailer manufacturer may have negligently manufactured or negligently designed a key component, like the brakes.

Given the wide variety of entities and individuals that may be at fault in a Virginia truck accident case, it is crucial to hire an attorney that specifically focuses on tractor-trailer cases. Gentry Locke has a team of Virginia tractor-trailer accident attorneys with a breadth of knowledge and experience. Contact one of our truck crash lawyers today for a consultation.

^[1] See 49 C.F.R. § 387.9; Va. Code Ann. § 46.2-2143.1(B).
^[2] See Large Trucks, NSC Injury Facts (2024), https://injuryfacts.nsc.org/motor-vehicle/road-users/large-trucks/.
^[3] 49 C.F.R. § 396.11; 49 C.F.R. § 396.13.
^[4] 49 U.S.C. § 13102(4); see also 49 C.F.R. § 390.5.
^[5] See 49 C.F.R. § 390.3(a).
^[6] See McKeown v. Rahim, 446 F. Supp. 3d 69, 76-77 (W.D. Va. 2020).
^[7] 49 C.F.R. § 390.5.
^[8] Id.
^[9] 49 C.F.R. § 396.3(a); see also 49 C.F.R. § 390.40.
^[10] See Hack v. Nester, 241 Va. 499, 504 (1990) (“An owner is negligent if he entrusts his vehicle to another person when the owner knows, or reasonably should know that the vehicle’s condition makes its normal operation unsafe.”); Darnell v. Lloyd, 2016 U.S. Dist. LEXIS 49811, at *10-14 (E.D. Va. 2016) (denying motion to dismiss negligent entrustment claim).
^[11] See Jones v. C.H. Robinson Worldwide, Inc., 558 F. Supp. 2d 630, 642 (W.D. Va. 2008) (“The court agrees that the Virginia Supreme Court would extend the cause of action of negligent hiring of an independent contractor to this situation involving the selection of a carrier by a freight broker.”).
^[12] See Ashley W. Winsky & Jeffrey P. Miller, Transportation Freight Brokers: Argue F4A Preemption but Take Additional Precautions (Nov. 2023), https://www.gentrylocke.com/article/transportation-freight-brokers-argue-f4a-preemption-but-take-additional-precautions/.

What to Do After a Tractor-Trailer Crash

Wednesday, May 29th, 2024

Clients frequently tell us that everything seemed to move in slow motion during a catastrophic crash with a tractor-trailer. The moments leading up to the crash may be blurry, but the crash itself becomes etched in the victim’s brain and often requires the extensive passage of time to fade into the background.

Tractor-trailers can weigh up to 80,000 pounds and are behemoths compared to the average family-owned vehicle. The damage they can cause to a vehicle made of heavy metals is almost incomprehensible. It is therefore no surprise that accidents involving a tractor-trailer frequently result in devastating polytraumatic injuries to victims in smaller vehicles. In fact, National Highway Traffic Safety Administration’s (NHTSA) data shows approximately 6,000 deaths and 150,000 injuries each year in crashes involving large trucks.^[1] Unsurprisingly, the vast majority of those injured are in passenger vehicles.^[2]

In our cases, we have found that the first phone call a truck driver makes after a crash is to his dispatcher, who sets in motion a team of insurance agents, investigator risk managers, and truck accidents attorneys whose sole responsibility is to reduce or eliminate the truck driver’s responsibility for the crash. These individuals commonly reach the scene of the crash before the debris is removed, which provides them a huge advantage over the victims, their families, and their truck accidents attorneys. This article describes the steps you should take after a truck crash to level the playing field.

If you, your family or loved one(s) are involved in a crash involving a tractor-trailer, we urge you to make sure the following is done as quickly as possible, when feasible, and in the order listed below:

1. Assess your injuries and any injuries to those in your vehicle and take immediate action to render first aid as necessary on the scene.
2. As soon as it is safe to do so, call 911 or have someone else contact them and give the exact location of the crash and a preliminary report of the injuries. Don’t hesitate to ask for an ambulance, helicopter, etc.
3. Contact your family/employer/loved one to report the crash and request any aid from them that may be necessary.
4. Do not move your vehicle unless directed to do so by the police.
5. Take or have someone take photos and videos of the scene of the crash, including the position of the vehicles and their relationship to physical objects, such as the side of the road, signage, etc. Take some photos at a fair distance from the crash site to give viewers a better overview of the scene.
6. Take pictures of any obvious injuries at the scene.
7. Once any injuries are stabilized and the accident scene is captured on video and/or in pictures, contact an experienced tractor-trailer/trucking attorney with the necessary resources to send a “go team” to the scene of the crash immediately. That team will be dispatched and preserve crucial evidence, which may determine the facts necessary to prove who was responsible for the crash and what damage was caused to property and people. The team will interview witnesses, inspect and photograph the scene, retain a qualified accident reconstruction expert, and capture aerial photographs if appropriate and necessary.
8. If you are injured in any way, accept the offer of first responders to be transported to a trauma center to evaluate your condition. Truck crashes involve a tremendous amount of energy being transferred from the machinery to the human body. Victims often are injured in ways they don’t first appreciate, but could ultimately be life-threatening. Being checked out by qualified healthcare professionals is crucial.
9. Once you have received appropriate emergency care and your situation is stabilized, begin writing a journal to give to your attorney. The journal should contain all the facts you can recall about and surrounding the accident. Make sure to include details of your experience since the moment of the crash, including any pain you have suffered, emotional trauma, and how the trauma and injuries have affected your life and those around you.
10. As soon as possible, personally meet with your tractor-trailer/truck accidents attorneys and his or her team either at the hospital or some other mutually convenient location to allow them to assess the facts of the crash and your injuries. These meetings are crucial and should occur as soon as possible after the crash.
11. Within a few days of the crash, report the accident to any and all insurance carriers who may insure you or your vehicle. Make the report by phone and follow up by email or letter.
12. Tractor-trailer crashes are far more complicated than any other type of motor vehicle crash and should only be handled by an experienced tractor-trailer/truck accidents attorneys who is knowledgeable about the Federal Motor Carrier Safety Regulations. Also, make sure the attorney has handled similar crashes many times in the past.  When you or your family select your personal injury attorney, make sure to thoroughly vet their biography to ensure they have the qualifications necessary to litigate with a huge insurance company and a sophisticated trucking company.
13. For more information about truck safety concerns, visit the Truck Safety Coalition website.^[3]

At Gentry Locke, we have the “go team” you need to successfully navigate your case. The team includes some of the most experienced truck accidents attorneys in the trucking industry. In addition, we have an in-house investigator, nurses, and paralegals who regularly navigate the complex rules and regulations governing federal motor carrier safety. We are happy to help you when needed. Contact us today to speak with a member of our team. Attorney Matthew W. Broughton is a licensed tractor-trailer driver (CDL holder) and Partner in charge of plaintiff litigation with 39 years of experience handling truck cases.

^[1] Traffic Safety Facts 2021 Data: Large Trucks, Nat’l Highway Safety Admin. (June 2023), https://crashstats.nhtsa.dot.gov/Api/Public/ViewPublication/813452.pdf.
^[2] Id.
^[3] Truck Safety Coalition, https://trucksafety.org.

Client Alert: DOJ Announces $2.7 Million Settlement with Insight Global in Latest Cyber-Fraud Enforcement

Friday, May 17th, 2024

In the latest settlement announced by DOJ under its Civil Cyber-Fraud Initiative, Insight Global LLC (Insight), an international staffing and services company, will pay $2.7 million to resolve allegations that it violated the False Claims Act (FCA) by failing to implement adequate cybersecurity measures to protect personal health information (PHI) and personally identifiable information (PII) under its contracts with the Pennsylvania Department of Health (PADOH).

The United States alleged that during the COVID-19 pandemic, PADOH hired Insight Global to provide staffing for COVID-19 contact tracing and paid Insight Global using funds from the U.S. Centers for Disease Control and Prevention. Insight Global understood that personal health information of contact tracing subjects needed to be kept confidential and secure, but it failed to do so.

Despite contractual requirements to keep personal information related to the services provided “confidential and secure” and comply with federal PHI safeguarding obligations, DOJ alleged that:

• PHI and PII of contact tracing subjects was transmitted in the body of unencrypted emails,
• Insight staff used shared passwords to access such information,
• Information was stored and transmitted using Google files that were not password protected and were potentially accessible to the public via internet links,
• Insight failed to provide adequate data security resources and training, and
• Insight ignored staff complaints about unsecure PHI/PII.

While state agency contracts typically do not fall within the scope of the FCA, PADOH used federal funds from the Centers for Disease Control and Prevention (CDC) to pay Insight, bringing the contract within the FCA’s purview. This is the second FCA Civil Cyber-Fraud settlement grounded in a state level contract. Thus, companies contracting with state governments must be aware of the possibility of FCA liability and must prioritize cybersecurity compliance.

The qui tam complaint which initiated this case was filed by Insight’s former Business Intelligence Reporting Manager. DOJ partially intervened in the relator’s claims, and the relator will receive a share award of nearly $500,000, evidencing both DOJ’s inclination to rely on whistleblowers as well as the financial incentives available to insiders with pertinent information. Further, as DOJ regularly points to a failure to remedy cybersecurity vulnerabilities when raised in complaints by employees as part of its alleged FCA violations, businesses must take these compliance complaints seriously.

With a continuous and rapid rise in cyber-attacks, class action suits over improper data protection practices, and government enforcement actions where companies are held liable for fraud based on improper cybersecurity and data protection practices, proactive compliance with privacy and cybersecurity laws is imperative. Particularly when doing business with the government, companies must ensure they are in compliance, both to avoid costly litigation and to build consumer trust.

Lawyers Team Up for Best Result

Monday, May 13th, 2024

Gentry Locke has a long history of associating with other attorneys. Don’t be surprised if/when you call the attorney that represented you in traffic court, drafted your will, or represents your business suggests that he associate Gentry Locke. Over the years, our firm has worked with other law firms who don’t typically handle personal injury cases. Gentry Locke has always associated with other lawyers and law firms in Virginia to give the highest level of service. We often partner with other lawyers in cases involving brain injuries, car accidents, catastrophic injuries, distracted driving accidents, medical malpractice, motorcycle accidents, nursing home abuse, premises liability, spinal cord injuries, truck accidents and wrongful death.

When the attorney you have contacted partners with our firm, you will receive the benefit of our firm’s legal expertise and many resources while also receiving support from your original attorney. We are proud that we are able to offer resources that can be so helpful in successfully resolving a personal injury case. Our resources include:

• A team of experienced attorneys with many years of experience in settling and litigating personal injury cases.
• Two in-house registered nurses – our nurses will help evaluate all of the medical aspects that are involved in medical malpractice cases and the damages stemming from personal injury cases.  Our nurses have many years of nursing experience both in a hospital setting and in private practice.  This experience is invaluable in helping our nurses assist the attorneys in evaluating your claim.
• A full-time private investigator – our investigator will help the attorneys “get to the bottom” of all of the facts in your personal injury case which includes visiting the accident scene and speaking to relevant parties.
• An attorney licensed to operate a tractor-trailer (CDL license).  The addition of an attorney licensed to operate a tractor-trailer to our team gives us insight into how and why a trucking accident occurred.
• Attorneys that are licensed to practice law in multiple states, including Virginia, West Virginia, North Carolina, Tennessee, and the District of Columbia.

So, when the attorney that you first call, who you trust, says they will be associating with Gentry Locke, we hope that you will be pleased.

At Gentry Locke, we are committed to working in association with other law firms.

When our firm is associated with another law firm, this is at no additional cost to you. Both law firms will simply share the original agreed upon fee. So, lawyers teaming up can only benefit you. Our firm will work tirelessly with your attorney using all of our resources to achieve the best result for you.  

You’ve Been Injured by a Defective Product – Now What?

Wednesday, May 8th, 2024

Introduction

If you have been injured or a family member killed by a defective product, you may have what is known as a “products liability” case and you should contact a Virginia personal injury attorney/Virginia wrongful death attorney as soon as possible. You must file a products liability lawsuit within the statute of limitations which is usually two years of the date of the incident.

Types of Product Liability Cases

Products liability cases apply to a wide range of items in the marketplace. These include household items, industrial equipment (typically a work-related injury), motor vehicles, all terrain vehicles, drugs and food, just to name a few. Products liability cases determine the legal responsibility arising for personal injury or death caused by a defective product sold or leased in the marketplace. The defect in the product may be a design defect or a manufacturing defect. 

There is not a uniform nationwide body of law relating to products liability cases. Rather, the states have developed their own versions of products liability law. Accordingly, contacting a Virginia products liability lawyer may be crucial to a successful prosecution of your case.

Who Might be at Fault in a Products Liability Case

Potential defendants in a products liability case include any party or combination of parties in the chain of commerce from manufacturers to wholesalers to retailers and potentially others. Your lawyer will determine which parties should be sued in your products liability case.

Elements to a Products Liability Case

Generally speaking in Virginia, there are four elements to a products liability case:

(1) A product which was sold or leased;

(2) A design or manufacturing defect in the product which was sold or leased;

(3) Personal injury or death; and

(4) The defect in the product was a substantial cause of the injury or death.

Recovery in a products liability case is dependent upon the person who has been harmed proving that a product, as designed and manufactured, is unreasonably dangerous for its reasonably foreseeable use. Typically, products liability causes of action include negligent design or manufacture, negligent failure to warn and breach of warranty claims (implied warranty of merchantability, implied warranty of fitness for a particular purpose, express warranty, etc.).

Preserving Evidence

Products liability cases tend to be very technical and preserving evidence from the outset relating to the defect in the product is critical. Unavailability of the relevant product, whether it was discarded, destroyed or altered in any way either intentionally or unintentionally, can create significant obstacles to pursuing a products liability claim. 

It is of utmost importance that the relevant product be preserved as soon as possible. If the product is currently in your control, your attorney will take possession of the product and store it in such a manner that it is preserved for future use as evidence in the case. 

However, if you are not in possession of the defective product, your attorney will send “preservation letters” (a letter stating that it would be improper to destroy or alter the product) to whoever maintains custody and control over the relevant product. Such a preservation letter creates a legal obligation for the custodian to safeguard the product for future use as evidence in the case.

Experts and Investigation

One of the first things your lawyer will do is to retain an expert or experts on the product that caused the injury or death. The expert(s) will assist you and your lawyer in establishing that the product was defective and that the defect was a substantial cause of the injury or death.

Your lawyer will also collect all medical records and medical bills relating to the incident. Your attorney may also meet with your healthcare providers to better understand the exact nature of the injuries/prognosis or death. 

Damages in Product Liability Cases

In a products liability personal injury case, the Plaintiff may recover damages for past and future medical expenses, past and future pain and suffering, emotional distress, embarrassment, humiliation, inconvenience, loss of past and future earning capacity, and permanent disability or disfigurement.

In a products liability wrongful death case the beneficiaries (usually close family members) of the decedent are entitled to recover damages. The beneficiaries are entitled to be compensated for any sorrow, mental anguish, and loss of solace. Solace may include society, companionship, comfort, guidance and advice of the decedent. The beneficiaries are entitled to recover any reasonably expected loss of income of the decedent from which they may have benefited. Beneficiaries may also recover for loss of services, protection, care, and assistance from the decedent. Finally, the beneficiaries may be entitled to recover any expenses for the care, treatment and hospitalization of the decedent concerning the injury resulting in the death as well as reasonable funeral expenses.

Fighting Corporations and Insurance Companies

Products liability cases are very expensive to prosecute and most individuals do not have the funds necessary to litigate against large corporate defendants and/or insurance companies. Because of this, Gentry Locke typically covers all expenses associated with the products liability litigation. Generally, Gentry Locke is then reimbursed for these expenses if a favorable recovery is obtained.

Conclusion

Bottom line, if you have been injured, or a loved one killed, by what you believe to be a defective product, you should contact a Virginia lawyer as soon as possible to protect your rights and interests.

Client Alert: DOJ Whistleblower Pilot Program

Tuesday, May 7th, 2024

The Department of Justice (DOJ) Criminal Division recently unveiled its Whistleblower Pilot Program, signaling a pivotal shift in the landscape of corporate enforcement and accountability. The program is slated to take effect “later this year.”

Here’s why you should take notice:

1. A New Era of Incentives

The DOJ recognizes that people and corporations respond to incentives. The carrot-and-stick approach, previously seen in the DOJ’s Voluntary Self-Disclosure Program for corporations, now extends to individual whistleblowers.

In this spirit, the Whistleblower Pilot Program aims to reward individuals who come forward with significant corporate or financial misconduct that the government is not yet aware of.

2. Financial Rewards for Whistleblowers

Under the pilot program, individuals who provide credible information about “significant corporate or financial misconduct” can receive financial rewards. These rewards will be carved out of forfeiture funds obtained through successful prosecutions.

Importantly, payments will be made only after victims have been properly compensated.

3. Expanding the Regulatory Regime

Unlike many existing whistleblower programs (such as those run by the SEC and CFTC), the DOJ’s program reaches beyond heavily-regulated entities. It targets privately held companies that have, in the past, skillfully navigated safe harbor provisions.

This means that even companies not directly overseen by regulatory agencies like the SEC or CFTC must now pay closer attention to their compliance practices.

4. Four Key Criteria for Rewards

For the DOJ to pay a financial reward to a whistleblower under the pilot program, four specific criteria must be met.

First, the information provided must not already be known to the government. The DOJ has indicated that it is “especially interested” in information about financial crimes and both domestic and foreign corruption, including Foreign Corrupt Practices Act violations.

Second, the whistleblower must not be involved in the criminal activity.

Third, there must be no existing financial disclosure incentives (such as qui tam litigation under the False Claims Act) for the whistleblower.

And fourth, all victims must be compensated first.

5. Action Steps

The DOJ has indicated that the Whistleblower Pilot Program will formally start “later this year.” In the meantime, corporations will want to take the following action steps to prepare.

Review Internal Reporting Mechanisms: Ensure robust internal channels for reporting misconduct. Encourage employees to speak up internally without fear of retaliation.

Strengthen Compliance Programs: Regularly assess and enhance compliance policies, training, and monitoring.

Seek Legal Guidance: Consult with legal counsel to navigate the complexities of the program and protect your organization.

In summary, the DOJ’s Whistleblower Pilot Program demands vigilance. By proactively addressing compliance and fostering a culture of transparency, you can mitigate risk by ensuring that you find and report misconduct before the DOJ learns about it from a whistleblower.